“Newsgathering as a Protected Activity,” in Freedom of Information and Freedom of Expression: Essays in Honour of Sir David William (Oxford University Press 2000)

Dave has defended the rights of journalists and news organizations for 35 years, litigating libel, privacy, access, and newsgathering claims in 20 states.

His regular clients include international news organizations, national and local newspapers, broadcast and cable television networks, station owners, magazine and book publishers, and internet content providers of all types.

More recently, Dave has litigated issues concerning government secrecy in many contexts. He was tapped to provide advice on the WikiLeaks and Edward Snowden disclosures, has pursued reporters’ access rights at Guantanamo Bay, and has represented a number of journalists in federal leak investigations.

In addition to his work at LSKS, Dave is a Clinical Lecturer at Yale Law School and serves as Co-Director of the Media Freedom and Information Access (MFIA) Clinic at Yale. The MFIA Clinic supports robust investigative journalism and government transparency by providing pro bono representation to journalists and non-profit organizations on issues involving access to government information, newsgathering, digital privacy, and free speech. Dave has supervised MFIA Clinic students since the clinic was established in 2009.

He has been described by Best Lawyers as “the top access litigator in the country,” a viewed echoed by clients in Chambers USA, which has reported that “there is no-one better in the country on freedom of information and access to the courts.” Chambers USA has described Dave as a “walking encyclopedia” of media law who has played a key role in “a number of important battles” and has been “instrumental in ensuring” that protections for reporters’ confidential sources are “watertight.” The Legal 500 likewise has noted that Dave is “widely praised as a recognized expert on freedom of information and access to the courts.”

Dave began his legal career in New York at Rogers & Wells, which later merged with London-based Clifford Chance, and served as head of the media litigation group at that firm before joining LSKS in 2003.

Notable Matters

Biro v. Condé Nast, 807 F.3d 541 (2d Cir. 2015). Dave and his LSKS colleagues successfully defended The New Yorker and its reporter David Grann in a defamation lawsuit arising out of a profile of Canadian art authenticator Paul Biro. Affirming the trial court’s dismissal of the case, the Second Circuit held that Biro, a public figure in the world of art authentication, had failed to allege facts in his complaint that could plausibly demonstrate the defendants acted with actual malice.

Military Commission Press Access. When four reporters were expelled from the Military Commissions at Guantanamo, Dave convinced the Pentagon that the expulsions violated the reporters’ First Amendment right to attend criminal trials. He then represented a broad coalition of national news organizations to challenge the media ground rules under which the reporters had been expelled. Dave continues to fight for public access to all criminal prosecutions at Guantanamo, and, in 2012, he became the first non-party attorney permitted to appear before the commission at Guantanamo when he opposed a government motion to close pretrial proceedings and argued in support of the public’s right to access those proceedings.

Chau v. Lewis, 771 F.3d 118 (2d Cir. 2014). Dave was part of a team that successfully defended hedge-fund manager Steven Eisman, both at the trial court level and on appeal, in a defamation case arising out of Michael Lewis’s best-selling book on the origins of the 2008 financial crisis, The Big Short, for which Mr. Eisman was a source. The plaintiff claimed he was defamed by a chapter in the book that depicted a conversation between himself and Mr. Eisman. The Second Circuit affirmed the district court’s prior grant of summary judgment, holding that the statements concerning the plaintiff were either constitutionally protected opinion or substantially true.

Mulgrew v. Board of Education of the City of New York, 87 A.D.3d 506 (N.Y. App. Div. 2011). On behalf of Dow Jones, The New York Times, the New York Daily News, the New York Post, and cable news network NY1, Dave defeated a suit by the teachers’ union seeking to block the Board of Education from disclosing reports on teachers’ job performance. An appeals court affirmed the trial court's conclusion that New York's Freedom of Information Law required the reports to be made available to the public, finding any potential privacy interest of the teachers to be outweighed by a compelling interest in public disclosure.

Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007). Dave and Michael Berry successfully defended an Oklahoma City television station and its reporter against claims for invasion of privacy brought by a rape victim after the station aired brief video images of the rape in connection with a story on the arrest of a suspect.